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Filed 8/20/20 P. v. Hardesty CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

STEPHEN THOMAS HARDESTY,

Defendant and Appellant.

C087943

(Super. Ct. No. 17FE022861)

A jury found defendant Stephen Thomas Hardesty not guilty of assault with a 

firearm, but guilty of making a criminal threat. On appeal, defendant argues that: (1) 

insufficient evidence supports the guilty finding on the criminal threat count because it is 

inconsistent with the not guilty finding on the assault with a firearm count; and (2) the 

trial court erred in responding to a jury inquiry about self-defense. We disagree with both 

claims and affirm.
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I. BACKGROUND

Defendant and his neighbor own large adjoining parcels of land. The neighbor 

would sometimes allow men, including R.M. and the victim, onto his land to cut down 

trees and harvest the wood. Defendant objected to this practice. In the past, defendant 

had contacted his neighbor, as well as law enforcement, about such incursions. 

One day, R.M. and the victim cut down several trees. Defendant called his 

neighbor to object, but was rebuffed. When R.M. and the victim returned the next day, 

they noticed that some of the wood they had cut was missing, with tracks leading to 

defendant’s home. Later in the day, when R.M. and the victim were preparing to leave in 

R.M.’s truck, defendant pulled up in his truck. Defendant challenged them, asserting that 

they were not entitled to be there. The victim got out of the truck, walked around to 

defendant’s truck, and told him that they had permission to be on the land. Defendant 

then picked up a rifle, pointed it out his truck window at the victim, and told the victim,

“I’m going to blow your fucken [sic] head off.” The victim reached up and pushed the 

barrel of the gun away. He then retreated back to R.M.’s truck, and R.M. called 

defendant’s neighbor, who called the sheriff’s department. Defendant drove his truck 

home first, then down the road, where he waited for sheriff’s deputies to find him. They 

recovered a loaded bolt-action rifle. 

At trial, defendant testified that he regularly kept a rifle in his truck for protection 

from robbers and coyotes. On the day in question, he returned to his property and found 

R.M. and the victim parked in the road. He asked R.M. whether he had permission to be 

there, and R.M. replied that he did. R.M. volunteered to call defendant’s neighbor. 

While he was doing so, the victim threw open the passenger-side door of R.M.’s truck, 

ran around to defendant’s truck, and yelled, “I’ll take care of you right now.” When he 

was within three or four feet of defendant’s window, he raised his hands as if he were 

about to grab defendant. Defendant was frightened, so he grabbed his rifle, pointed it at 

the victim, and said, “[I]f you grab me, I’ll blow your fucking head off.” R.M. stated that 
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he was going to call the police, and both parties retreated. Defendant testified that when 

he pointed the rifle at the victim, it was loaded, but could not have been fired because the 

bolt was open and the safety was on. 

The prosecutor charged defendant with assault with a firearm (Pen. Code, § 245, 

subd. (a)(2)—count one)1 and making a criminal threat (§ 422—count two). At the 

conclusion of the evidence, the trial court read CALCRIM No. 3470, which reads in part: 

“Self-defense is a defense to Assault with a firearm and Making criminal threats.” During 

deliberations, the jury submitted several inquiries to the court, the second of which read: 

“We need clarification on the counts—1. If we find the defendant not guilty of the 1st 

count, can we still find the defendant guilty of the 2nd count? 2. Are the charges 

independent of each other? 3. If we find the defendant not guilty on Count 1 because he 

was acting self[-]defense could he be found guilty of Count 2?”2 

After conferring with counsel for both parties, the court sent a response stating: 

“Each of the counts charged in this case is a separate crime. You must consider each 

count separately and return a separate verdict for each one.” The next morning, at 

defense counsel’s request, the court followed up with a second response that read: “In 

reference to question #2 also refer to CALJIC [sic] 3470.”3 After deliberating for the rest 

of the day, the jury returned a verdict of not guilty on count one (assault with a firearm) 

and guilty on count two (making a criminal threat). 

1 Undesignated statutory references are to the Penal Code.

2 The jury wrote, then crossed out, one of their questions.

3 The court’s response referred to CALJIC, although the pattern jury instructions the 

court read to the jury were from CALCRIM.
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II. DISCUSSION

A. Insufficient Evidence of Making a Criminal Threat

Defendant contends that insufficient evidence supports his conviction for making a 

criminal threat because it is inconsistent with the not guilty finding for assault with a 

firearm. In particular, defendant argues that the jury’s question about self-defense means 

that the jury made a factual finding that he acted in self-defense with respect to the 

assault with a firearm count. Defendant further argues the conduct underlying the threat 

and the assault was the same, so a finding that self-defense applied to the assault requires 

that it apply to the threat, as well. We disagree.

To assess the sufficiency of evidence to support a conviction, we review “the 

entire record in the light most favorable to the prosecution to determine whether it 

contains evidence that is reasonable, credible, and of solid value, from which a rational 

trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Silva

(2001) 25 Cal.4th 345, 368.) “[R]eversal for insufficient evidence ‘is unwarranted unless 

it appears “that upon no hypothesis whatever is there sufficient substantial evidence to 

support” ’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “A 

general verdict implies findings in favor of the judgment on all material issues, and where 

the evidence supports a finding of facts on any set of issues which will sustain the verdict 

it will be assumed on appeal the jury so found.” (People v. Tolstoy (1967) 

250 Cal.App.2d 22, 24.) “[T]he inner workings and deliberation of the jury are 

deliberately insulated from subsequent review. . . . Juries provide no reasons, only 

verdicts.” (People v. Guerra (2009) 176 Cal.App.4th 933, 942.) 

“In order to prove a violation of section 422, the prosecution must establish all of 

the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which will 

result in death or great bodily injury to another person,’ (2) that the defendant made the 

threat ‘with the specific intent that the statement . . . is to be taken as a threat, even if 

there is no intent of actually carrying it out,’ (3) that the threat—which may be ‘made 
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verbally, in writing, or by means of an electronic communication device’—was ‘on its 

face and under the circumstances in which it [was] made, . . . so unequivocal, 

unconditional, immediate, and specific as to convey to the person threatened, a gravity of 

purpose and an immediate prospect of execution of the threat,’ (4) that the threat actually 

caused the person threatened ‘to be in sustained fear for his or her own safety or for his or 

her immediate family’s safety,’ and (5) that the threatened person’s fear was 

‘reasonabl[e]’ under the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227-

228.)

Defendant told the victim that he would “blow his fucking head off” while 

pointing a rifle at him. He testified that he intended to stop the victim from approaching 

him further, and the threat caused the victim to retreat back to the safety of R.M.’s truck 

because he was scared that he might be shot. The threat was unequivocal and 

immediate—it offered a precise explanation about what defendant intended to do, and 

was made while defendant had the apparent means to do it. R.M. and the victim were 

shocked by defendant’s conduct and immediately reported it; defendant’s neighbor stated 

that they were “screaming” that “he’s going to shoot us” when they called him. The 

deputies who responded to the call also noted that R.M. and the victim appeared “very 

frightened” and were “[i]n fear of their life.” These facts are adequate to support the

conviction for making a criminal threat.

Moreover, the facts supporting the criminal threat offense would be the same 

whether the jury found defendant guilty or not guilty with respect to the assault with a 

firearm offense. Each count, and the verdicts on those counts, was independent of the 

other. (§ 954 [“An acquittal of one or more counts shall not be deemed an acquittal of 

any other count”]; People v. Manriquez (2005) 37 Cal.4th 547, 579.) The possibility that 

the jury could have used inconsistent reasoning or come to inconsistent conclusions does 

not tether the outcome of the two counts together or otherwise invalidate a guilty finding.

(People v. Avila (2006) 38 Cal.4th 491, 600.) Nor can we draw any specific factual 
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findings, whether from a jury inquiry or the verdict itself, about the specific theories or 

methods the jury used to reach the verdicts, as defendant’s argument would require us to 

do. (People v. Guerra, supra, 176 Cal.App.4th at p. 942.) Defendant’s argument is 

premised on reading such findings into the verdicts, and on the implication that those 

findings would invalidate a factually supported guilty finding. Because we reject both 

premises, we reject defendant’s conclusion that the making a criminal threat conviction 

must be reversed. 

B. The Trial Court’s Response to the Jury Inquiry

Defendant argues that the trial court erred when it responded to the jury’s question 

asking whether it was permissible to find the defendant not guilty of assault with a 

firearm, but guilty of making a criminal threat. The People respond that defendant has 

forfeited this issue because defense counsel agreed to the first response to the jury’s 

question, and the court offered a second response to the question at defense counsel’s 

request. Assuming without deciding that the issue was not forfeited, we conclude that the 

court did not commit error in its response.

1. Background

During deliberations, the jury asked whether it could find defendant guilty of 

count two (making a criminal threat) if it found him not guilty of count one (assault with 

a firearm); and whether, if it found that the self-defense instruction applied to count one 

(assault with a firearm), it could still find defendant guilty of count two (making a 

criminal threat). The court responded: “Each of the counts charged in this case is a 

separate crime. You must consider each count separately and return a separate verdict for 

each one.” Later, at defense counsel’s request, the court referred the jury back to 

CALCRIM No. 3470, the jury instruction on self-defense. CALCRIM No. 3470 states, in 

relevant part: “Self-defense is a defense to Assault with a firearm and Making criminal

threats. . . . [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt 

that the defendant did not act in lawful self-defense. If the People have not met this 
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burden, you must find the defendant not guilty of Assault with a firearm or Making 

criminal threats.” 

2. Analysis

Section 1138 imposes upon the trial court a duty to help the jury understand the 

legal principles applicable to the case. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) If 

“the original instructions are themselves full and complete, the court has discretion under 

section 1138 to determine what additional explanations are sufficient to satisfy the jury’s 

request for information.” (Ibid.) To properly exercise its discretion, “a court must do 

more than figuratively throw up its hands and tell the jury it cannot help. It must at least 

consider how it can best aid the jury. It should decide as to each jury question whether 

further explanation is desirable, or whether it should merely reiterate the instructions 

already given.” (Ibid.) “When a question shows the jury has focused on a particular 

issue, or is leaning in a certain direction, the court must not appear to be an advocate, 

either endorsing or redirecting the jury’s inclination.” (People v. Moore (1996) 

44 Cal.App.4th 1323, 1331.)

The jury questions asked whether the two counts were connected or related, such 

that the outcome in one governed the outcome in the other. The court answered that the 

two counts were separate and entitled to their own consideration, including specifically as 

to the claim of self-defense. 

The court’s responses were correct statements of law and avoided directing the 

jury to any specific outcome or advocating for any specific position. Because the 

responses explained that each count was entitled to its own separate consideration, the 

responses comported with the trial court’s instructional obligation.

Defendant contends that, rather than directing the jury to the pattern jury 

instruction, the court should have taken the additional step of pointing the jury to one 

specific line of the instruction, which explains that self-defense can apply to either count. 

This argument rests on the premise that the jury could not find self-defense applied to one 
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charge and not the other because such a finding would result in an inconsistent verdict. 

As explained above, neither count was reliant on or tied to the other, and we reject 

defendant’s claim. We see no error in the court’s response to the jury inquiry.

III. DISPOSITION

The judgment is affirmed.

/S/

 

RENNER, J.

We concur:

/S/

 

RAYE, P. J.

/S/

 

BLEASE, J.